An Unforeseen Alliance: The Experience of Mental Health Professionals when Testifying in Sexual Assault Criminal Proceedings

Abstract

Introduction: Court testimonies of mental health expert witnesses (MHEWs) received scholarly attention regarding paradigmatic differences, and ethical issues, neglecting the testimony experience. The study examines MHEWs’ testimony experience in sexual assault proceedings in Israel. Methods:16 interviews. MHEW were recruited using chain referral sampling. Interviews were analyzed based on the constructive dialectical model. Results: Three main themes were conceptualized: MHEWs’ initial image of the court, their perception of mental health and legal languages, and their perception of court conduct as a theatrical play. The themes address the experience of tension between law and mental health along with an unprecedented experience of congruence that emerges when: 1. MHEWs based their testimonies on evidence-based tests and therapeutic interventions which value objectivity, as opposed to focusing primarily on the subjective experience, accommodating the evidence-based legal debate; 2. When MHEWs and legal practitioners formed an interpersonal connection, in accordance with key relational therapeutic elements.

Keywords

behavioral science court testimony criminal proceedings mental health expert witnesses sexual assault

Introduction

The past century has seen the growing use of mental health knowledge in criminal proceedings concerning matters such as insanity, suggestibility, and the rehabilitative prospective of offenders (Blumenthal, 2002; Monahan and Walker, 2011). Mental health knowledge is implemented through the use of mental health expert witnesses (MHEWs).

MHEWs who testify in sexual assault cases focus on professional issues relevant to a legal question. In the case of sexual assault survivors, experts offer an evaluation of trauma exposure and PTSD, primarily when addressing credibility issues (Ellison, 2005) and when assessing a personal injury (Miller, 2015). In the defendant's case, experts mostly conduct psychiatric evaluations relevant to the insanity defense, concerning eligibility to stand trial or criminal responsibility. In other cases, experts conduct risk assessments of sexual offenders, primarily in sentencing or early release hearings concerning the diversion of offenders to rehabilitative programs or the imposition of restrictions on sex offenders upon release from incarceration (Goel et al., 2016; Goldstein et al., 2003). Mental health expert testimony is also sometimes required in regard to a specific course of treatment, either vis-à-vis the survivor or the offender.

Professional testimonies provided by MHEWs have received scholarly attention regarding aspects such as the paradigmatic differences between law and mental health, the ethical dilemmas concerning the dual role of MHEWs as evaluators and clinicians and those deriving from the need to disclose therapy records to the court, and the ramifications of court testimony on the therapeutic alliance; these aspects will be discussed in the following sections. There seems to be an overall acknowledgment of the harsh and disempowering effect of the testimony experience. This concern is addressed in numerous guidebooks, including emotional and tactical suggestions for preparing to testify in court (Barsky, 2012; Brodsky, 2013). Aside from these guidebooks, the experience of MHEWs testifying in court has yet to receive empirical attention. Most of the research regarding the emotional impact of court testimony examines the experience of lay witnesses—primarily victims and defendants. The present study examines the experience of prosecution, defense, or court-appointed MHEWs testifying in sexual assault criminal proceedings (SACP) in Israel. Interviews with MHEWs focus on the experience of writing an expert opinion, preparing for court testimony, and testifying in court. The study conceptualizes three main themes: the interchange between law and mental health related to the interviewees’ image of the court, the legal and mental health languages, and the perception of the court hearing as a game and as theater. The study empirically validates common conceptions regarding paradigmatic conflicts between law and mental health that make court testimony a difficult experience. Surprisingly, the study unveils an additional and unprecedented experience of compatibility and congruence between law and mental health, which generates a positive testimony experience. This experience emerges when there is a mutual alignment between two key objectives in law and in mental health treatment: (1) reliance on objective facts derived from evidence-based testing or therapeutic interventions, thus connecting subjective experience with real-life occurrences adhering to the legal fact finding process; and (2) creating meaningful interpersonal relations between the lawyer and the MHEW, thus echoing basic intersubjective principles that are the basis of the therapeutic bond. This alignment provides a new understanding regarding the essential factors that promote fruitful collaboration between lawyers and MHEWs, enabling them to overcome common reservations and difficult experiences. The study contributes an interdisciplinary angle to the overall knowledge about dynamics and emotions in the courtroom and the implementation of mental health knowledge in legal proceedings.

Literature review

The literature on the role of mental health practitioners in legal proceedings usually addresses the irreconcilable gap between law and mental health. Some scholars underline the disciplinary and at times epistemological conflict between the two paradigms. Others focus on ethical issues pertaining to the conflicting roles of MHEWs who testify simultaneously as evaluators and clinicians, the disclosure of therapy records, and the effect of the testimony on the therapeutic alliance. The experience of testifying in court has received scholarly attention only when referring to victims and defendants, as noted earlier.

Paradigm conflict

The use of mental health knowledge in legal proceedings has encountered strong reservations derived from the general reluctance of the courts to incorporate scientific knowledge. Following the Daubert standard (Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)), judges are required to act as gatekeepers, assuring that expert testimony proceeds from scientific knowledge, by assessing the reliability of the method applied in the evaluation presented in the expert opinion. Judges are reluctant to assume this role because they lack adequate training in scientific methodology and statistics, and therefore are hesitant to take on the task of evaluating a program of research (Faigman, 2000). In addition, both judges and jury tend to perceive experts hired by legal parties as “hired guns,” willing to testify to whatever the party paying them demands, as long as they are suitably compensated. This perception has been reinforced as experts play an increasingly important role in the trial process (Domitrovich, 2016).

An additional reservation pertaining the implementation of mental health knowledge in legal proceedings is related to the intellectual difficulty involved in integrating the scientific culture into the law (Faigman, 2000) due to a paradigmatic conflict. This conflict is expressed in three main aspects: The first aspect is the difference in social goals. The main objective of the law is to guide human behavior through deterrence and retribution, based on a truth-finding process. The mental health professions, on the other hand, focus on developing a body of knowledge designed to observe and describe human behavior in order to rectify interpersonal conflicts, psychological disorders, or difficulties (Haney, 1980; Melton et al., 2017).

The second aspect addresses the different definitions of what constitutes a fact. Legal proceedings require a high degree of certainty when establishing a decision based on facts, even more so in criminal proceedings that require proving allegations beyond a reasonable doubt. Mental health research aspires to define behavioral patterns establishing probable ties between variables (Haney, 1980; Melton et al., 2017). For this reason courts are hesitant to base their rulings on empirical mental health knowledge as they often perceive this knowledge as no more than generalized common sense, incapable of leading to a definite conclusion regarding a specific case (Blumenthal, 2002; Sanders, 2009).

The third aspect is related to the different professional standpoints. Mental health professionals focus on the matter at hand, basing an objective assessment on empirical study in order to understand a behavioral phenomenon and offer a therapeutic solution. The legal standpoint of lawyers is derived by their adversarial role and legal strategic interests (Greenberg and Shuman, 2007; Strasburger et al., 1997), which require them to abide by special obligations to their clients and zealously advocate for their interests. This results in a manipulative portrayal of the facts and widens the dispute, thus forcing the court to rule between the two opposing sides. (Carlen, 1976; Dare, 2016).

Ethical dilemmas in the testimony of MHEWs

A number of ethical issues arise in regard to testimonies given by MHEWs, including informed consent, treating mentally disordered offenders, privacy and confidentiality, integrity and impartiality, conflict of interests, competence, and due diligence (AAPL, 2005; APA, 2013).

In an effort to address these ethical concerns, leading mental health associations—such as the American Academy of Psychiatry and the Law (AAPL, 2005), the American Psychological Association (APA, 2013), the British Psychological Society (BPS, 2017), and the European Psychiatric Association (EPA)—have issued ethics guidelines for the practice of forensic psychiatry and psychology. However, some ethical issues relevant to this study remain unresolved, such as the disclosure of sexual assault survivors’ therapy records and the conflict of interests that arise when mental health professionals are required to testify both as experts and as treating clinicians.

The need to disclose therapy records to the court poses a dilemma primarily in sexual assault cases. Disclosure of such records violates basic therapist-client privilege and may harm the therapeutic alliance because psychologic counseling relies on confidentiality (Pope and Vasquez, 2016). Allowing defendants access to victims’ private therapeutic information, especially in sexual assault cases, can deter them from seeking counsel or from reporting their assault to law enforcement authorities (Robinson, 2005). The question of psychotherapist-patient privilege was addressed by the U.S. Supreme Court decision in Jaffee v Redmond (518 U.S. 1 (1996)). The court ruled that communications between licensed psychotherapists and their patients are privileged and do not have to be disclosed in cases heard in federal court. Other courts still weigh psychotherapist-patient confidentiality privilege against the defendants’ constitutional rights to due process when deciding whether to require the submission of therapy records (Winick, 1995).

An additional ethical dilemma is related to integrity, impartiality, and conflict of interests when mental health professionals are required to testify both as experts and as treating clinicians. The two roles are distinctly different. Expert witnesses are required to present their opinion, which relies on meticulously examining multiple sources of information in order to reach a professional assessment based on objective facts, while serving the needs of the legal system. Testimonies of treating clinicians address a therapeutic process, describing a search for a narrative truth based on the meaning that patients attribute to events rather than objective facts. The main role of treating clinicians stems from the therapeutic alliance directed at healing the patient rather than serving the legal social cause.

Due to the differences between the two roles, some scholars oppose the notion of taking on both roles, arguing that attempts to treat and evaluate the same person may result in an irreconcilable role conflict (Greenberg and Shuman, 1997; Strasburger et al., 1997). Other scholars perceive therapeutic and forensic roles as compatible, arguing that therapeutic processes are inevitability subjected to legal scrutiny. Therefore, the need to preserve high standards of objectivity in therapy is necessary, not only for forensic evaluation but for planning a suitable course of treatment (Heltzel, 2007).

Both the AAPL (2005) and the APA (2013) have issued guidelines suggesting that mental health professionals refrain from taking on both roles. When faced with an inevitable need to act in dual forensic evaluator-therapeutic capacities, the recommendation is for mental health professionals to only testify on subjects in which they have adequate expertise.

The court experience of witnesses

Studies regarding the court experience of witnesses focus mainly on lay witnesses and do not address the experience of expert witnesses. These studies focus on witnesses’ sense of just proceedings, drawing from procedural justice theory. Such studies deviate from the assumption that a satisfactory experience of the encounter with legal authorities is determined by the definitive legal outcome. These studies prove that the psychological underpinnings of satisfaction are based on people's perceptions of how they are treated by legal authorities. A perception of fair treatment engenders a sense of just proceedings and strengthens trust in legal authorities (Tyler, 1984). A sense of fair treatment by officials in positions of authority is derived from their perception as honest, ethical, unbiased, willing to admit their mistakes and provide opportunities for representation (Tyler, 1988). There is an extensive discussion in the literature regarding the divide between “insiders” and “outsiders” in the criminal justice system. Insiders are the law enforcement officials who have the power and information to influence the criminal justice process, while outsiders are the crime victims, defendants, bystanders, and general public. The discussion addresses the adversarial positioning of insiders and outsiders, and its effect on witnesses’ experience in criminal proceedings and their perception of law enforcement agencies. The outsiders usually experience the system as frustrating, dismissive of their feelings, incomprehensible, narrow-minded, and unconcerned with proper retribution. This divide creates a gulf that undercuts the ability of the criminal procedure to serve substantive goals of criminal law, thus damaging its legitimacy in the eyes of the public (Bibas, 2006; Bibas, 2012). Promoting the participation of outsiders in the criminal process—by keeping them better informed about the criminal process and by according them larger roles in criminal justice—has proven efficient in bridging the aforesaid divide and in creating a sense of satisfaction and validation (Bibas, 2006, 2012; Wemmers, 2008).

In the context of this divide between insiders and outsiders, studies on the court experience of lay witnesses have examined their ability to understand courtroom conventions and language, and its effect on their sense of just proceedings. Legal forensic linguistics tends to be archaic, abstruse, impersonal, and manipulative in describing events, designed to fit the legal perception of reliability. Many lay witnesses attested that they had trouble understanding the legal language, which hindered their overall understanding of legal proceedings and caused anxiety during cross-examination (Fielding, 2013). The experience of trial hearings was affected by its theatrical quality as well. Trial hearings are described as carefully staged agonistic play, containing actors playing their predetermined roles: lawyers presenting a strategical rehearsed narrative and witnesses presenting the narrative by expressing the “appropriate” emotional response. These staged trial hearings often create a feeling of solitude and helplessness among victims who testify in court (Rock, 1991, 1993).

The spatial organization of courts also affects the court experience of lay people, primarily victims. Research shows that court architecture creates a hierarchical division of space among professional insiders according to their agency affiliation (court officials, prosecution services, or the police) and an additional division of space between them and court lay attendees. Professional insiders are usually awarded a private space, while the lay people attending the court are left to roam the corridors. The spatial segregation creates a feeling of alienation and mistrust in the court system among lay witnesses and victims, consequently upholding the pariah status of victims (Rock, 1991, 1993).

As to the court experience of defendants, it has been found that the legal moral rhetoric tends to position defendants as passive spectators at their own trial, with professionals representing their interests (Fielding, 2013; Garland, 1990). Perceptions of fairness are influenced by how defendants are treated. Defendants who feel they are treated well during court deliberation are more likely to perceive the outcome of the trial as fair, with no necessary correlation to the actual judgment (Tyler, 1984).

The experience of witnesses in SACP

Studies that examine the court experience in SACP usually focus on the sexual assault survivors and find that their experience is fraught with frustration and anxiety-inducing elements such as lengthy waiting periods, fear of encountering the defendant in court, insufficient information relayed to survivors by prosecutors, lack of preparation for testimony, and fear of aggressive cross-examination (Hunter et al., 2013).

Courtroom rituals also have been found to have a dominant effect on sexual assault survivors. Court attire, physical setting, manner of address, and micro-ceremonies such as swearing an oath have been identified as hierarchical, requiring complainants to perform subordinate roles that emphasize gender, race, and socio-economic status mirroring the societal hierarchies rooted in sexual violence (Craig, 2016). Most studies concur that sexual assault complainants are believed only when they play a part in trial rituals that conform to institutional beliefs regarding women's reliable representation of trauma. Based on this perception of reliable representation, complainants are awarded (or denied) victim status and provided resources and recognition in response to their claims (Corrigan and Shdaimah, 2016; Craig, 2016). This requirement to comply with stereotypical perceptions of a believable victim is said to create organizational “leaky pipelines” that push sexual assault survivors out of the criminal justice pipeline. Consequently, making rape reporting unpleasant and difficult causes survivors to be persuaded, ignored, intimidated, and bullied into withdrawing complaints (Corrigan, 2013).

While there is a substantial body of empirical knowledge regarding the court experience of lay witnesses, the court experience of MHEWs has yet to receive empirical attention. There is a consensus among scholars regarding the emotional stress that MHEWs experience vis-à-vis court testimony, as stated earlier. Several textbooks on professional preparation have been published that provide directives for forensic assessments and expert testimonies (Barsky, 2012; Brodsky, 2013; Jackson and Roesch, 2015). These directives include professional guidelines for writing an expert report, conducting assessments, testifying in court, and coping with cross-examination. Most of these directives are aimed to meet legal requirements and address ethical issues discussed earlier. The guidelines also address emotional preparation for court testimony, designed to help cope with the stress it induces. Professionals are urged to reflect on personal presuppositions and worries regarding the legal process and to contend in advance with stress-inducing factors such as fear of conflictual situations or of failure. Practical suggestions are offered to create a better understanding of court culture and conduct, with the aim of helping to cope with cross-examination tactics (Barsky, 2012; Brodsky, 2013). The overall recognition of the complexities of MHEW court testimony is significant, but raises the need for empirical examination. This study focuses on the experience of MHEWs who have testified in SACP, addressing the interdisciplinary encounter between law and mental health from professional and personal angles.

Method

The research design is qualitative, based on constructivist grounded theory (CGT). CGT integrates classic grounded theory principles, which perceive knowledge as grounded in the human experience, with constructivist principles that identify knowledge as socially produced. CGT encourages the examination of the socially constructed nature of the research field through the meaning ascribed to the social experience by the interviewees. The theory acknowledges the multiple standpoints of both the researcher and the research participants, influenced by preexisting social structural conditions such as privileges, positions, interactions, and geographic location. Thereby, the researcher's goal is to understand the participants’ beliefs, purposes, actions, and perspectives (Charmaz, 2009). The qualitative CGT research design fits the research topic as it seeks to examine the interdisciplinary encounter based on the human experience of MHEWs during the court testimony. The examination takes into account the personal and interpersonal nature of the qualitative inquiry; the researcher in this study is a social worker with vast experience in treating sexual assault survivors and offenders, as well as in testifying in sexual assault court cases as an expert witness on issues related to PTSD. The author's proximity to the field of this study enables the formation of a broad understanding of the research participants’ diverse testimony experience. Yet, this proximity received careful attention throughout the research process by maintaining self-awareness regarding the author’s personal positions and testimony experience, as further discussed below.

Sample

The research data included 16 semi-structured, multi-perspective interviews conducted with MHEWs. The MHEWs comprised three psychiatrists (two men and one woman), five psychologists (three men and two women), five social workers (one man and four women), and three criminologists (two women and one man). Two of the psychiatrists and one social worker were court appointees. Half of the remaining interviewees testified for the defense and the other half testified for the prosecution. Half of the MHEWs testified as expert witnesses regarding a theoretical mental health issue and half testified as lay witnesses regarding a therapeutic process involving either the sexual assault survivor or the defendant. The number of interviewees was determined by the limited recruitment potential, since there are few mental health experts who specialize in treating sexual assault survivors or offenders who have testified in court in Israel. Most of these MHEWs were interviewed in this study. An additional restrictive factor is the limited number of sexual assault criminal cases in Israel that require testimony by MHEWs. The Israeli court system handles approximately 600 sexual assault cases a year, most of which (82%) are adjudicated based on plea agreements. As a result, approximately 100 sexual assault cases go through full evidentiary hearings each year, and most of these cases do not involve testimony by MHEWs (Office of the State Attorney Annual Report, 2018).

After receiving an ethical approval by the Institutional Review Board interviewees were selected using chain referral sampling based on predetermined criteria of importance (Babbie, 2016; Patton, 2015). Sampling criteria included sexual assault criminal cases involving testimony by MHEWs that were held in the Israeli district courts in the six jurisdictional districts in the country.

Since there is no formal court archive in Israel containing expert witnesses specializing in sexual assault, initial MHEWs were approached by a collective invitation in the social media as well as direct approach based on preexisting professional acquaintance. These initial research participants acted as “seeds” of the research sample, recommending other suitable interviewees. In addition, legal practitioners who worked with MHEWs while handling sexual assault cases were asked to offer suitable referrals.

All invitations to participate in the study included a detailed description of the research topic. Prior to the interview, each participant signed an informed consent form that included a description of the study and a written obligation to refrain from disclosing any details that might expose the identity of the sexual assault survivors, the defendants, or the research participants, except for their professional affiliation. Final excerpts chosen to be incorporated in publications were sent to the research participants to receive their approval.

Data collection and analysis

Data were gathered through semi-structured and multi-perspective interviews designed to draw the research participants into their experience of testifying in court (Galletta, 2013). Open-ended questions in the interview guide addressed the MHEWs’ outlook on the implementation of mental health knowledge in legal proceedings and their testimony experience, referring to the writing of the expert opinion, preparing for the court testimony, and testifying in court. The interviews were audio recorded and transcribed. The outcome was some 200 pages of interview transcripts. The interviews were conducted at the interviewees’ clinics and lasted between 90 to 120 minutes.

Interviews were analyzed using a constructive dialectical model comprised of several stages. Transcripts were first divided into meaning units, which included various words, phrases, actions, and opinions that indicated reoccurring and significant trends. The units were then defined and categorized conceptually, and compared and challenged against each other. This was followed by a search for opposite meaning units that may have been previously missed. Meaning units were finally organized into related clusters, thereby gradually forming an integrated theoretical overview regarding the research topic (Ben-Ari and Enosh, 2019).

During the data collection and analysis stages, the author maintained self-awareness through reflexive inquiry by keeping a reflective journal (Charmaz, 2009), documenting thoughts pertaining to the research participants’ views and court experience in order to maintain a critical self-reflection on the research process and on personal attitudes regarding the research participants’ experience and opinions.

Findings

All the research participants’ portrayals of their testimony experience revolved around three main themes: the interviewees’ expectations of court conduct, based on their image of the court, in comparison to actual court conduct; the differences and similarities between the language of the legal and mental health disciplines; and the perception of court hearings and court conduct as a “play,” referring to its theatrical nature.

All three themes were divided into contradictory and complementary experiences. A third (six) of the MHEWs, primarily prosecution-appointed MHEWs, experienced a substantial gap between law and mental health, perceiving the disciplines as incompatible in terms of conduct and disciplinary language. Four MHEWs, primarily defense and court-appointed MHEWs, experienced law and mental health as compatible and mutually beneficial, and their testimony as purposeful and even enjoyable. Six of the MHEWs, primarily defense and court-appointed MHEWs, expressed mixed attitudes and emotions regarding the interchange between law and mental health, as manifested in their contradictive and complementary court experience.

Images

Most research participants expressed a contradiction between their image of the court and expectations of how court hearings should be conducted, on the one hand, and what they actually experienced in their testimony, on the other hand. Others were well acquainted with the legal system and, therefore, did not perceive a contradiction between common conduct in court and their initial expectations.

Expectations were rooted in cultural, religious, and social perceptions of courts and the judicial system. Some attributed the court a superior quality, perceiving judges as overmen:

I viewed the court as this superior entity, above society, above human. I believed judges were above us morally, intellectually, more sensitive, and wiser. (Faith, a psychologist and prosecution witness)

The origin of this perception can be connected to the Jewish cultural and religious imagery of the “divine court,” representing the ultimate judgment of human actions by a just and omniscient God. This comparison represents the research participants’ desire for the court to act as an all-seeing and perfect entity, capable of conducting just proceedings, as Faith explained:

I remember I told the prosecutor with tears in my eyes, “I thought it was all about justice; it’s not about justice.” Lawyers acting like mobsters; prosecutors and defense attorneys joking like friends as if the discussion is not about an unimaginable suffering. I was appalled by the way the discussion was held. Nothing about it was respectful or just (Faith, a clinical psychologist and prosecution witness)

An additional image of just court proceedings is rooted in the popular culture. Therapist witnesses expected court hearings to be conducted as portrayed in popular television programs or in films. Ryan testified on behalf of the prosecution regarding his patient's claim of sexual abuse. Ryan conveyed his expectations regarding the prosecutor's proper conduct during his cross-examination:

Didn’t the prosecutor watch CSI or something? She should have shouted OBJECTION (laughing). There were many stages during the cross-examination when I thought it would have been appropriate had the prosecutor objected to the defense’s sinister line of questioning. (Ryan, a clinical social worker and prosecution witness)

Ryan's expectation to be defended zealously by the prosecutor is very common among the interviewees, including those who testified for the defense. All perceived themselves as outsiders in the legal arena, like honorary guests who were invited to make their professional contribution and should be protected from the adversarial aggressive debate:

I viewed the court as this respectable place, comprised of professionals who are not versed in my field of expertise, and that my role was to educate them so they could reach an informed decision. Little did I know that the discussion would be adversarial and not professional. I expected to be treated with respect and reverence, to be appreciated for my contribution. No one prepared me for what really went on. (Reuben, a clinical psychologist and prosecution witness)

Expressions of seemingly congruous imageries with reality were very seldom and usually did not portray the court as respectful. Research participants who did not sense a gap between their expectations and the court’s actual conduct usually had previous knowledge and acquaintance with the legal system:

I’m very much involved in criminal law. I know from my experience that the court is not a place of justice. It’s very clear there is no connection between law and justice, or between law and truth. On the other hand, occasionally you read in the papers about justified rulings and you think to yourself, “Well done! The system works somehow.” (Mason, a psychologist and defense witness)

Mason did not experience any gap between his expectations and the reality of the court because he had already become disenchanted with the criminal judicial system through his previous acquaintance with it. This gave him a clear sense of reality, which erased all common images of the court as an impartial and superior entity.

Language

Most of the research participants experienced the legal language and mental health language as fundamentally different, rendering them incompatible. Other participants perceived the two languages as complementary, bearing mutual contributive value.

Some interviewees attributed the differences between the legal language and the mental health language to their respective disciplinary objectives. According to this view, the legal language stems from the legal objectives of establishing discipline and controlling behavior, while the mental health language focuses on understanding the etiology of behaviors:

My main goal as a psychologist is to understand the patient. I try to see the world through his eyes, how the logical thing to do in his perception is to rob a bank. A psychologist does not take the stand of a social gatekeeper who needs to guard society and keep all the delinquents at bay. That is not my job. My job is to understand them. (Austin, a psychologist and defense witness)

In this context of disparate legal and therapeutic objectives, some MHEWs addressed the difference between the therapist's close interpersonal positioning with the patient during the therapeutic process, and the therapist's detached positioning when testifying about the patient. The need to testify in court regarding a course of treatment negates basic principles vis-à-vis the appropriate conduct vital for establishing a close personal therapeutic relationship. While the therapeutic bond relies on interpersonal connection, the obligation to talk about the patient in the third person during court testimony interferes with this interpersonal bond and may cause disruption in the therapeutic process. Faith addressed the possible disruption of the therapeutic alliance:

When something foreign to the therapeutic process enters, it affects the treatment. It can be beneficial at times, and at times harmful. In the case of giving testimony regarding a therapeutic process, the victim will hear me speaking about her, analyzing her, answering unpleasant questions about her, all the while referring to her in the third person. This could cause her to feel objectified and damage the intimate therapeutic space. (Faith, a clinical psychologist and prosecution witness)

The legal view and grasp of the events in question was perceived by some of the research participants as narrow. This perception was related to the court's focus on small, concrete details and its inability to capture the big picture:

I tried to present to the court the overall emotional damage of the sexual assault—the trauma and the victim’s inability to articulate the trauma in words. All the while, the judges kept redirecting the discussion to the insignificant details of how the therapy reports were written. It was like they were so preoccupied with the color of the leaves, they couldn’t see the entire forest (Ryan, a clinical social worker and defense witness)

Building on their perception of the law as applying a narrow view, research participants addressed the law's inability to address complex situations due to a dominant tendency to categorize events in dichotomized divisions:

The law is categorical: There’s a clear divide between what’s good or bad, right or wrong, allowed or forbidden; and it doesn’t deal with complex realities that are prominent in sexual assault cases. For instance, how do we deal with an offender who commits sexual assault as part of his own sexually victimized childhood? Do we treat him as a victim and mitigate his punishment, or as an offender and punish him in all severity? (Faith, a clinical psychologist and expert witness)

An additional difference between the legal language and the mental health language, as noted by the research participants, pertains to the incapability of diagnostic tools to meet legal requirements. For example, Adrian described how psychiatric evaluation can provide probable and at times debatable diagnoses that do not suit the legal need for certain and conclusive conclusions:

It’s not like a bone fracture that is undeniable when looking at an X-ray. In psychiatry, you can be in a situation where one psychiatrist will determine that a person is psychotic, whereas another will determine that he is not psychotic or does not suffer from severe symptoms that establish a criminal insanity defense. (Adrian, a psychiatrist and court-appointed witness)

Diagnostic tools are also deemed to be incompatible with the legal process because they were designed for other purposes. For example, Mason claimed that psycho-diagnostic tests were not designed to predict future behavior and therefore cannot meet legal requirements:

I’m ambivalent about writing an expert report because it leads, in many cases, to an abuse of therapeutic and diagnostic tools. For example, you are required in the court testimony to answer questions regarding the defendant’s probable future conduct. But the psycho-diagnostic evaluation was not designed for that purpose. (Mason, a psychologist and defense witness)

In an effort to deal with the differences between the legal and the therapeutic languages, as stated above, some research participants claimed that MHEWs emphasize clinical terminology in their testimonies because they believe it is more likely to attract the court's attention:

To receive a status of respect in court, mental health experts have adopted a cognitive, rigid, and clinical language, focused on post-trauma symptoms. Clinical terms are essential for understanding, but their use in therapy is not common. We occasionally explain professional terms in support groups, but we mostly focus on the emotional experience, and less on discussing symptoms. (Alice, a social worker and prosecution witness)

Alice distinguished the clinical diagnostic language from the typical dialogue in therapeutic interventions: She attributes a rigid quality to the diagnostic discourse, which is therefore accorded more attention and credibility in court.

Contrary to research participants who perceived the legal and the mental health languages as incompatible, some perceived the two languages as complementary. MHEWs who shared this perception practiced different therapeutic approaches or diagnostic testing that was more akin to legal thinking.

Unlike Alice and Mason, Reuben practices a different approach to diagnostic testing, which, in his opinion, can stand legal scrutiny because of its ability to generate objective quantitative findings:

I suppose my expert reports have improved over the years because I have learned how to write them in a way that sustains cross-examination. I refrain from using vague psychological jargon, referring to hypothetical cognitive structures based on projective psychological testing such as the Rorschach inkblot test. My diagnostic tools are based on objective testing that is later analyzed numerically, thus eliminating the personal bias typical of self-reporting questioners. These tools are much less susceptible to scrutiny. (Reuben, a clinical psychologist and prosecution witness)

As to therapeutic approaches, Jade attributes high value to real-life events in therapeutic interventions, similar to a court's evidence-based examination. Jade takes into account a patient's subjective experience of these events, yet her professional work revolves around connecting the personal experience to reality. In that respect, Jade's perception resembles the court's emphasis on establishing events based on objective evidence:

My therapeutic approach centers on dealing with real occurrences, as opposed to a psychodynamics approach that focuses solely on the patient’s emotions. It is essential for me to have a sense of the patient’s real life in order to facilitate a professional intervention. I don’t think you can separate real occurrences from the inner experience. Therefore, certain concepts like taking responsibility for your emotional state and personal fulfilment are fundamental in my professional approach. (Jade, a psychologist and prosecution witness)

Social workers and criminologists who treated sexual offenders under a court order stressed the important role of the court as a motivational factor. The need to periodically submit therapy reports to the court creates a commitment to the therapeutic process among the patients. These MHEWs confront their patients with real-life events connected to their offense, underlining the consequences of their actions and encouraging them to take responsibility and distinguish between right and wrong. Such confrontational interventions resemble the criminal law approach, which confronts defendants with the consequences of their offenses, and bring the legal and mental health therapeutic languages into alignment:

The criminal proceedings are constantly present in criminological therapy. It’s essential to the rehabilitative process. For instance, there was a patient who received a high score in the risk assessment. We explained to him what it meant to be diagnosed with a medium level of risk. He knew what his distorted beliefs about sexual behavior were; otherwise, the treatment could not have been successful. Understanding his abusive behavioral cycle reduced his risk of reoffending. This manner of confrontational therapy is the reason why it is very rare that I will testify in court about matters I haven’t previously discussed with my patient. (Madelyn, a criminologist and defense witness)

Play

Many research participants perceived the human dynamics in court as inauthentic. Some compared court conduct to a theatrical play with its formal etiquette, rituals, and attire, and rigid division between the legal adversarial sides and their respective roles. Most of the research participants were unfamiliar with the accustomed conduct in court and opposed the aggressive norm of court deliberation.

Only a few research participants thought that court proceedings were conducted in a candid or practical manner. Many participants viewed court etiquette as unnecessary and staged, and believed it made no contribution to the key objectives of legal proceedings:

Court deliberations seem a bit overly dramatic. The unnecessary hierarchy, judges, and lawyers with their robes, having to stand up when the judge enters. It seems like they go to all this trouble to preserve these rituals and for what reason? What would have happened if we didn’t do all that? Couldn’t we have reached the same outcome? There is so much emphasis on etiquette and sometimes it overrides everything else, and you find yourself spending days in deliberations without accomplishing anything. It is ridiculous and archaic. Compared to that, when I think about the important decisions we reach here in therapy, in this room, without all the fuss—it makes you wonder. (Jenny, a social worker and prosecution witness)

It is very apparent from Jenny's comments that the staged manner of court deliberations created a sense of alienation and affected her belief in the ability of legal deliberations to accomplish their purpose. The research participants’ estrangement from court etiquette and lack of familiarity with the rules of conduct often created a feeling of disorientation:

It was my first time testifying in court. I felt like a fish out of water, even regarding trivial things. For instance, I approached the judge in what she perceived to be an unrespectful way. I wanted to explain something that was obvious to me but somehow did not translate to the court. I tried to demonstrate the issue by referring to the judge and said, “Imagine you are so and so,” and she went berserk. She ordered me not to approach her directly, to stick to the case, and refer only to the written expert opinion. In my view, her reaction was uncalled for. I was just trying to explain myself, and the only thing that annoyed her was the fact that I had approached her directly. So, I continued to explain the matter, this time referring to an anonymous person. (Mason, a psychologist and defense witness)

The adversarial positioning of court witnesses was perceived by the research participants as irrelevant to the psychological professional debate, causing unnecessary rivalry and preventing the witnesses from conducting a practical professional discussion:

The fact that the defense’s expert witness and I weren’t allowed to converse and reach a mutual understanding as to the victim’s emotional state was very frustrating. It’s as if he represents one side and I the other and everybody hates each other. (Faith, a clinical psychologist and prosecution witness)

Most participants did not understand the reason behind certain court restrictions on deliberation. These restrictions seemed coercive and aggressive and caused research participants to perceive testifying as a demeaning experience:

There was this one time when the defense attorney kept instructing me to answer “yes” or “no” to his questions, although the answers were more complex. I started saying “yes, but…” and he immediately stopped me and went on to the next question. I looked at the judge, but he said: “Ma’am, you probably don’t have that much experience testifying in court, so when asked a yes or no question, you should keep your answers to yes or no.” It was horrible. This was part of the humiliation—these incidents that make you feel at a loss for words, like someone took away your ability to utter them. It’s like you don’t have a voice. (Lydia, a social worker and prosecution witness)

Though many of the research participants attested to being personally attacked during cross-examination, there was a distinct difference between defense and prosecution witnesses regarding the content of the attack positioning defense MHEW as defendants and prosecution MHEW as victims, consistent with the staged adversarial divide. Defense witnesses stated that most of the personal attacks involved their payment, suggesting that they were “hired guns.” Robert, for example, used to work in the correctional system as a social worker and began treating sexual assault offenders after he retired. He described the biased attitude toward defense witnesses during cross-examination, which made him feel like a suspect or a defendant:

I expected to be given credit for all the years I had worked in the public service. Everyone told me that I would be treated differently after I make the transition to the private sector and start testifying for the defense, and that is exactly what happened. Since my transition, I am treated like a suspect. There were incidents when prosecutors told me that people like me are the reason pedophiles exist and the judge didn’t stop them. I’m never asked professional questions regarding my expert opinion. The cross-examination revolves almost always around my payment, as if my professional opinion can be bought. (Robert, a social worker and expert witness)

Prosecution witnesses, on the other hand, compared the aggressive attitude they endured in cross-examination to the abuse the victim had experienced:

The defense attorney argued that the sexual assault did not have any repercussions on the boy I treated, referring to his ability to have intimate relations with his girlfriend. I remember him asking me about the boy’s erections in front of his four molesters. It was so abusive. I wonder if I was able to make the distinction between the boy and me, during my court testimony. In a way his abuse was mine. (Ryan, a clinical social worker and prosecution witness)

During the adversarial and at times hostile legal deliberations, MHEWs viewed the judges as largely indifferent and obtuse, refraining from interfering with the cross-examination even when the MHEWs felt attacked on the stand:

The public defender appeared to be extremely calm while I testified regarding the malicious acts his clients had done to the child I treated. The four defendants just set there, smiling to one another and giggling. The child’s mother sat behind them, slowly losing her temper. All the while, the judges were preoccupied with technical rubbish regarding what I wrote and at what date. And you ask yourself, “Do they notice the big picture? Do they hear the giggling? Do they grasp those four teenagers slaughtered this child’s soul?” You can’t know because they keep these straight, indifferent faces about them. (Ryan, a clinical social worker and prosecution witness)

Ultimately, many research participants stressed the difference between court conduct and therapeutic conduct. Court deliberation was portrayed as staged, inauthentic, and aggressive, while the therapeutic conduct was depicted as sincerely aimed at cultivating intimate and authentic interpersonal connection. MHEWs described this as one of the main reasons they felt like outsiders in the legal sphere, estranged from its rules of conduct:

I am a therapist I like people. I believe people and in people. I want to heal people and ease their miseries. I’m not a cynical person. The court is a cynical place, full of untrusting people playing in a cynical theatrical play. This is not me, and the testimony was one of the hardest experiences I ever had to endure. (Robert, a social worker and defense witness)

Contrary to research participants who perceived court conduct as staged, ingenuine, and aggressive, there were those who had a positive impression based on a meaningful experience during court testimony. It should be noted that most of these research participants were prosecution witnesses.

Some of the research participants conveyed a sense of alliance with the lawyers in promoting a joint cause:

It felt as if the prosecutor was on the victim’s side, just as I was. We met several times before my testimony; he was very attentive and communicative. He consulted with me and shared his thoughts. He was very understanding and caring, and it made me feel like we were in this together, like I was an integral part of the process. (Alice, a social worker and prosecution witness)

Some of the prosecution witnesses expressed positive attitudes regarding the cross-examination carried out by defense attorneys. Positive attitudes did not imply that defense attorneys failed to conduct a thorough investigation, rather, they were derived from the courteous manner in which the cross-examination was conducted:

My experience at large is of fair and respectful proceedings. I was listened to, asked questions, was given the opportunity to answer freely and felt as if I contributed to the proceedings. No one coerced me to limit my answers to “yes” or “no” or at any stage suggested that my answers were irrelevant. (Alice, a social worker and prosecution witness)

As to portrayals of the judges’ stance toward MHEWs, positive experiences stemmed from a respectful attitude that generated a sense of meaningful contribution:

Most of the time I feel like the court is genuinely interested in what I have to say. When the deliberation remains within pertinent boundaries, it makes me feel like I have the opportunity to make a meaningful contribution, to influence the court’s decision, and make a difference. This is a part I really enjoy (Jade, a clinical psychologist and prosecution witness)

The positive experience expressed by these research participants, based on the attitude of judges and lawyers toward them, created an alternate perception of court deliberations: not as a strategical game or an unauthentic theatrical play, but as a professional and pragmatic legal deliberation.

Discussion

Three main themes emerge from examining the experience of MHEWs during court testimony: The first theme is the gap between the reality they encountered in court and their prior image of the court; the second theme concerns the differences and similarities between the legal language and the mental health language; and the third theme pertains to the perception of court hearings as a play.

Some of the research participants’ portrayals are consistent with the existing literature, which, as noted, focuses on the paradigmatic differences between law and mental health, and has yet to devote empirical attention to the experience of court testimony (Haney, 1980; Melton et al., 2017). The research participants addressed the language gap between the two disciplines stemming from their different objectives, with the law aiming to serve as a social gatekeeper requiring a definitive, wording of conclusions and the mental health profession seeking to understand motives of deviance and able to conclude probable conclusions. As to the ethical challenges faced by MHEWs, the research participants, primarily therapists of sexual assault survivors, did not address common scholarly debates regarding the disclosure of therapy records (Pope and Vasquez, 2016) or ethical dilemmas arising from the need to testify both as experts and as treating clinicians (Greenberg, and Shuman, 1997; Heltzel, 2007; Strasburger et al., 1997). Rather, they addressed the dilemmas concerning the possible effects of their court testimony on their interpersonal connection with their clients. Research participants discussed the hesitance to talk about their clients in the third person, and define their emotional state in clinical terms during court testimony, fearing it may be perceived by them as objectification. The possible objectification might have crucial consequences on the therapeutic alliance because it negates the relational nature of sexual assault treatment, which emphasizes the intersubjective encounter between the therapist and the client (the survivor). The intersubjective approach is common in sexual assault treatment and acknowledges the existence of two subjects in the therapeutic alliance. Emotions, personal views, and the power relations between the therapist and the client are recognized and serve as an important tool for therapeutic interventions especially in sexual assault treatment. Airing the subjective stances during therapy creates a safe bond for healing and acts as a corrective experience to the abusive relationship (Benjamin, 1988). The findings of this study stress the breach of the intersubjective alliance caused by the need to testify in court and adds to the existing scholarly debate by articulating the toll imposed on the therapeutic alliance with sexual assault survivors, caused by the exposure of the therapeutic process during the MHEW's testimony. Current literature centers the debate on privacy issues and on the breach of therapist-client confidentiality caused by the court testimony and the need to submit therapy records. The findings of this study add to the existing ethical debate, concerning privacy and confidentiality, by addressing fundamental elements that are crucial to the therapeutic intersubjective relationship when treating sexual assault survivors.

In regard to current studies on the court experience of witnesses, the findings of this study echo common scholarly references regarding the witnesses’ feeling of solitude and unjust proceedings caused by the divide between “insiders” and “outsiders,” the court's hierarchical divisions, and its unfamiliar and staged rituals (Bibas, 2006; Bibas, 2012; Craig, 2016; Fielding, 2013; Tyler, 1984). This study contributes to the existing body of knowledge, which focuses on lay witnesses, by addressing the experience of professional witnesses testifying in court. MHEWs, as well as other professional witnesses, are not connected directly to the criminal event. Their role in court amounts to contributing professional knowledge relevant to the legal issue, thus assisting in the weighing of facts in the judicial ruling. That may explain why their emotional experiences in providing court testimony were not examined and the debate regarding the nexus of law and mental health was limited only to paradigmatic and ethical issues. The findings of this study clearly exhibit the profound emotional aftermath of court's conduct and offer a unique perspective on the emotional consequences of the specific roles of MHEWs. It is evident that MHEWs, much like lay witnesses, felt as outsiders in the legal process. Their position as professionals did not shield them from feeling alienated from the legal process or hurt by an aggressive cross-examination. Research participants addressed the court's overly dramatic, inauthentic conduct and unnecessary hierarchical divisions, which were perceived as ridiculous and archaic; this cast doubt on the court's ability to reach constructive results. The court was portrayed as aggressive in reprimanding expert witnesses, limiting their answers, treating them like “hired guns”, humiliating and intimidating them. The adversarial positioning of the debate created frustration as it prevented experts from conducting a pragmatic and professional debate. The experience of MHEW who testified for the prosecution resembles in many ways the experience of sexual assault survivors in criminal proceedings. Much like sexual assault survivors, MHEWs address the lack of adequate preparation prior to the testimony, perceive court ceremonies as alienating and archaic and state that the aggressive cross-examination and its acceptance by the court is experienced as bullying, intimidating, and silencing. A similar parallel is found between the defendants’ position as accused and the experience relayed by MHEW who testified for the defense, who portrayed incidents of being accused as lacking professional integrity, being biased, and were blamed of perpetuating sexual assault.

The pivotal novel finding of this study is the indication of a positive experience of court testimony, along with the perception of law and mental health as congruent and compatible. This perception is seldom addressed by scholars and is of great significance when attempting to develop effective ways to incorporate much-needed mental health knowledge in legal proceedings. Portrayals of law and mental health as compatible featured two common elements: The first was a professional objective stance that applied objective evidence-based diagnostic methods and attributed great importance to real-life events in therapeutic interventions. This stance fitted the objective nature of the legal debate. The second was focused on the interpersonal interaction that expressed a sense of connection between MHEWs and lawyers, along with appreciation of the unique contribution of testimonies given by MHEWs.

The two elements represent key objectives in law and in mental health treatment: Taking an objective stance correlates with the fact-finding mission of criminal proceedings. Substantiating the truth of the matter in dispute enables the court to decide between the two versions of events presented by the opposing sides, and to deliver a fair and just ruling (Roberts and Zuckerman, 2010). It should be noted that the criminal law of evidence has been subject to legislative intervention triggered by critiques over what constitutes an objective fact. Nonetheless, the law of evidence has still managed to retain a distinctive commitment to certain values and principles of legal inquiry, all aimed toward forming a factual sense of events (Roberts and Zuckerman, 2010). MHEWs who based their expert testimonies and written reports on objective, evidence-based assessment tools with clear protocols, and MHEWs who addressed real occurrences in therapy rather than focusing entirely on subjective emotions, experienced court testimony as congruent with legal requirements, and did not experience a paradigmatic conflict between their professional contribution and the legal requirements.

Cultivating an interpersonal connection resembles the foundation of the therapeutic alliance. As discussed earlier, a successful intersubjective therapist-patient alliance is crucial for achieving desired therapeutic outcomes through the mutual acknowledgment of subjective stances (Benjamin, 1988; Horvath et al., 2011; Ulvenes et al., 2012). MHEWs attested that respectful interpersonal relationship with the legal practitioners had a positive effect on their testimony experience. The positive effect of a good interpersonal connection between law enforcement officials and witnesses is well established in the current literature, primarily in reference to the participation of victims. Such participation has been shown to help promote a sense of fair and just proceedings among victims. This includes active participation that obligates criminal justice authorities to comply with the victim's preferences, as well as passive participation that obligates these authorities to consult with the victim and to provide information (Edwards, 2004). Though victims’ participation affects the nature of the interpersonal relationship between victims and prosecutors, it does not resemble the unique relationship formed between lawyers and MHEWs. Mental health professionals who testify, either as expert witnesses or as lay witnesses, exercise the professional standing that defines their distinctive contribution to the legal process. Their professional role affects the nature of their relationship with lawyers, often turning it into a unique form of professional collaboration. The novelty of this study's findings suggests that the quality of the professional collaboration is based not only on whether the expert testimony accommodates the legal inquiry, but also on the quality of the interpersonal bond based on the recognition of its intersubjective nature. MHEWs who experienced congruence between mental health and the law usually referred to relational attributes in the human interaction. For example, portrayals of a considerate and interested prosecutor or judge created a sense of purpose among MHEWs and even enjoyment while testifying in court.

The positive testimony experience occurred when there was a mutual alignment regarding one, or in some cases two, of the key objectives cited above. This alignment created compatibility concerning basic professional perceptions and methods of operation. When MHEWs valued the objectivity in their professional work, their testimonies aligned with basic legal perceptions and methods of fact finding, and the objectives of legal procedure. When legal practitioners cultivated fruitful collaboration with MHEWs and treated them with respect, they echoed basic therapeutic perceptions and methods of fostering alliances and trust This alignment in perceptions marks a key principle that should guide both legal practitioners and MHEWs when attempting to incorporate mental health knowledge in legal proceedings in a productive manner. MHEWs are advised to produce evidence-based expert opinions and to add a concrete description of behaviors and symptoms (and not only a portrayal of subjective emotional experience) when testifying about a therapeutic process. More importantly, legal practitioners should be aware of the emotional experience of MHEWs and the parallels between their experience and the experience of sexual assault survivors in sexual assault cases. Their attention should be directed at implementing this knowledge to cultivate interpersonal relationships with MHEWs and subsequently enhance their sense of courteous and just proceedings. Incorporating these two vital principles both in legal work and in mental health therapeutic and diagnostic work will promote the much-needed incorporation of mental health knowledge in legal proceedings.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Inbar Cohen

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